Reinsuring Clauses

Cover
Title
Copyright
Foreword
Preface
Contents
Table of Cases
Table of Legislation
CHAPTER 1: INTRODUCTION TO REINSURANCE CONTRACTS
	Definition of Reinsurance
	Forms of reinsurance contracts
		Proportional reinsurance
		Non-proportional reinsurance
		Facultative reinsurance
		Treaties
	Definition and types of reinsurance in the United States
		Definition of reinsurance
		Purpose of reinsurance
		Types of reinsurance
	Wording of reinsurance contracts
		Treaties
		Proportional facultative reinsurance
CHAPTER 2: THE NATURE OF FACULTATIVE REINSURANCE
	The subject matter of reinsurance
		Applicable principles
			Privity of contract
			Privity — United States
				General rule: Reinsurers have no obligations towards assureds
				Intervention in the settlement process by the reinsurer
				Policy wording
				Reinsured\'s insolvency
			Cut-through exception
			Insurable interest
			Co-insurance/Double insurance
		The \"further insurance\" view
		The \"liability\" view
	The principle of back-to-back cover
		Scope of the principle
			Vesta v Butcher
			Groupama Navigation et Transports & Ors v Catatumbo Seguros
		Rebutting the presumption
		Concurrency between insurance and reinsurance policies in the United States
		Applicable law and back-to-back cover: Wasa v Lexington
		Facts
		Decisions
		Implications of Wasa
CHAPTER 3: INCORPORATION AND THE FULL REINSURANCE CLAUSE
	The function of \"as original\"
	Development of the theory of incorporation
		Requirements for incorporation
		HIH v New Hampshire
	The scope of incorporation
		Incorporation of unusual terms
		Incorporation of inconsistent terms
			Construction of inconsistent terms
			Inconsistency between reinsurance — insurance contracts
		Incorporation of claims clauses
		Incorporation of implied terms
		Incorporation of arbitration clauses
			Incorporation from charterparty into bills of lading
			Incorporation from direct insurance into reinsurance contracts
			The Arbitration Act 1996 section 6(2)
		Incorporation of jurisdiction and choice of law clauses
CHAPTER 4: SPECIFIC ISSUES RELATING TO INCORPORATION
	Waiver of defences clause in the original insurance
	Alterations to the original policy
	Alterations to the original policy and the continuing duty of utmost good faith
	Leading underwriter clause in the original policy
	Obligations of the assured under the direct policy
	Other forms of incorporation wording
	The presumption of back-to-back cover and incorporation
	Incorporation in facultative non-proportional reinsurance
CHAPTER 5: INCORPORATION IN THE LAW OF THE UNITED STATES
	Follow the form clauses
	Follow the form — concurrency between the reinsurance and the original insurance
	Incorporation of terms
		Incorporation of arbitration clauses
		Incorporation of choice of law clauses
	Follow the form — assignment of the original policy
	Follow the form — endorsement or modification of the original policy
	Overriding effect of the follow the form clauses
CHAPTER 6: SETTLEMENT CLAUSES
	English law: Follow the settlements
		Establishing and quantifying the reinsured\'s liability under the direct policy
			Judgment
			Arbitration awards
			Settlements
		Settlement clauses
			Early formulation of settlement clauses: \"To pay as may be paid thereon\"
				Follow the settlements
	Construction of the follow the settlements clause
		The Scor case
			The first limb: Within the scope of the reinsurance agreement
				The second limb: Acting in a bona fide and businesslike manner in settling the claim
		Burden of proof
			Ascertainment of liability in settlements
			The assured\' s fraud
			Proving liability by the reinsured in stop-loss policies
		When the reinsurers\' liability arises
		The necessity of payment to trigger the reinsurer\'s liability
		Follow the leader v follow the settlements
		Re-opening a settlement
	United States: Follow the fortunes — follow the settlements
		Distinguishing follow the fortunes from follow the settlements
		Implying settlement clauses
		Functions of settlement clauses
	Exceptions to the follow the fortunes clauses
		Fraud or bad faith
			Validity of the original insurance policy
		Defences available for reinsurers under the settlement clauses
			Claim clearly outside the scope of original insurance
			Claim beyond the reinsurance policy cover
				Unreinsured losses
				Losses falling beyond the reinsurance policy limits
CHAPTER 7: THE SCOPE OF THE FOLLOW THE SETTLEMENTS CLAUSE
	English law: The reinsured\'s costs in defending the assured\'s claim
		\"Sue and labour\" clauses
		Partnership and implied term argument
	United States
		No follow the settlements clause
		Does the follow the settlements doctrine extend to defence costs?
			Cost-inclusive, cost-exclusive and cost supplemental policies
				Interpretation of the original policy is binding on the reinsurer
				Wellington Agreement
		Defence costs that the reinsured agreed to pay beyond the original insurance  policy limits
		Reinsureds\' declaratory judgment costs
	The relationship with claims provisions
	Allocation
		English law
		The US perspective
			Inconsistency between pre-settlement and post-settlement allocations
			Distinguishing settlement from allocation
			Annualisation
			Reinsurer\'s reservation
			Summary
	Interest
	Extra-contractual liability
	Commutations
	Future and unidentified claims
CHAPTER 8: VARIATIONS AND QUALIFICATIONS IN WORDING
	Variations: Extending cover
		\'Without question\" to follow the settlement
		Liable or not liable
	Variations-limiting cover: \"Without prejudice\" settlements
	Qualified follow the settlements clauses
		\"Within the terms of original insurance\"
		\"... as far as applicable hereto\"
CHAPTER 9: CLAIMS PROVISIONS
	Claims cooperation clauses
	Notification provisions — time of notification
		English law
		United States
			\"Prompt notice,\" notice \"as soon as practicable,\" or \"immediate notice\"
			Notice when it \"appears likely\" that a claim will or \"may\" involve a policy
	Claims control clauses
	Remedy for breach of claims provisions
	Determining the nature of claims provisions
		English law
			Distinguishing warranties from conditions precedent
			Distinguishing conditions precedent from innominate terms
		The United States
	Is terminology determinative?
		Prejudice
			California
			Kansas
			Massachusetts
			New Jersey
			New York
			North Carolina
			Pennsylvania
			Presumption of prejudice
			Proof of prejudice
			Exception to the prejudice rule: Reinsured’s bad faith
	Limits on the reinsurers’ discretion under claims clauses
	Waiver of right to rely upon breach of claims provisions
		England
		United States
	Implied term: Inspection of records
	Implications of claims provisions in the US
		Agency relationship between the reinsured and reinsurer
		Attorney—client privilege
	Follow the settlements v claims provisions
Index